Southern Pac. Co. v. Hall

• Decision Date: 05 February 1900
• Docket Number: 549.
• Citation: 100 F. 760
• Parties: SOUTHERN PAC. CO. v. HALL.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F. 760

SOUTHERN PAC. CO. v. HALL.

No. 549.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

Frank McGowan and Frederick B. Lake, for plaintiff in error.

F. P Primm, Reddy, Campbell & Metson, and I. D. Orton, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This action was brought to recover damages for injuries received by the defendant in error, alleged to have been occasioned by the negligence and carelessness of the plaintiff in error, on February 3, 1896, at the city of Redding, Cal. It appears from the pleadings and evidence that at said time the plaintiff in error maintained and used in said city a water tank or hydrant, from which it took water to use in the management of its railroad, and which was situated about three feet distant from the track upon which it run its train of cars in the conveying of passengers into and from the city; that this tank or hydrant was inclosed in a wooden box or frame about two feet wide, three feet long, and two feet deep; that the said box or frame was imbedded in the ground the top thereof being even with the surface of the ground and was provided with a wooden lid or cover about two feet high and three feet long, which was used for the purpose of covering said tank. The answer admits the maintaining and use of the hydrant, but denies that 'any tank or hydrant was maintained or used at any point where passengers arriving in said city alighted from the cars of said defendant. ' The defendant in error on the date mentioned was a passenger upon the train of the plaintiff in error from the town of Anderson to the city of Redding. The complaint alleges:

'That when said train arrived in said city he lawfully alighted therefrom after it had stopped for the purpose of permitting the passengers to alight from the cars of said train. That plaintiff, after alighting from a car of said train, accidentally stepped into said box or hole, which had negligently and carelessly been left uncovered by said defendant, its agents and servants, and was thereby without any fault or carelessness on his part, thrown back upon the track of said railroad and under said cars; and, said train starting forward while being managed and conducted by said defendant and its agents and servants, a wheel of one of the cars of said train ran over and crushed plaintiff's foot, and his said foot was so badly injured thereby that it became and was necessary to amputate the same, and he then and thereby sustained a severe and permanent shock to his nervous system, and was put to a great expense in the employment of a physician, and has been wholly deprived of earning wages by manual labor for his support. * * * That the injuries so received by him at the time and place aforesaid are permanent in character.'

The court, in its charge to the jury upon material points, among other things, said:

'(1) To support the plaintiff's action in this case, it must appear that the defendant was guilty of negligence, and that this negligence was the proximate cause of the injury to plaintiff. * * * It was the duty of the defendant railway company to keep its premises, the approaches to its depots and yards, and such places as it permitted the traveling public to use, in good order and in safe condition; and if you believe from the evidence that the water box and place was not safe (that is to say, if you believe from the evidence that the water box was left uncovered, or in such a position as to render it unsafe for persons getting on or off the cars of defendant at the time in the complaint alleged), and if you find that it was in such dangerous or unsafe condition, and that the plaintiff, alighting from the car, fell therein, and that he was, by reason of such dangerous and unsafe condition of said box, and the fall therein, injured and damaged, then your verdict should be for the plaintiff for the amount which you find the plaintiff to have suffered in damages. But, if you find as a fact that the immediate and proximate cause of the injury to plaintiff was the negligent or careless manner in which he alighted from the train of the defendant, then your verdict must be for the defendant.'

To this no objection was made or exception taken.

'(2) In arriving at your verdict as to the amount of damages to which the plaintiff should be entitled, if you should find him entitled to any, you should take into consideration the personal injury to the plaintiff, the loss of his foot, the loss of his wages, the pain and suffering which he may have endured, and the amount of expense to which he was put by reason of such injury, and render such a verdict as you believe from the evidence to be just under all the circumstances.'

The exception taken to this instruction is confined to the use of the words 'the loss of his wages.'

There are 43 specific assignments of error. Their discussion may appropriately be brought under two distinct heads, with but few subdivisions: (1) Alleged errors in admission of certain testimony; (2) alleged errors in giving and refusing to give certain instructions.

1. With reference to the exceptions taken to the admission of evidence:

Mr Primm, one of the attorneys for the defendant in error, was the first witness called in his behalf, and testified that after his employment as an attorney, and for the purposes of this case, he made measurements, and caused to be made a map, showing the situation of the various points; that after the map was made he took it and went down to the railroad track, and compared it with the objects there, to see that it was correct, and familiarized himself with the surroundings in relation to the place where the train coming from the south and going to the north ordinarily and usually stops in the morning; that he went down to the train a number of times to get the length of the train, in order to see how far the steps of the car would be over the water box, and to see just how far the end of the train would be from the main passageway, or the lower passageway, where the passengers travel; that the map was a correct representation of the railroad and station at Redding, with respect to the building and track, and of the location of the water box and other places mentioned by him. He was then permitted to point out these places on the map, and show to the jury the situation of the tracks, the depot, the streets, and the hole as it was at the time of the accident. The map was afterwards introduced in evidence. Objections were made to all of this testimony. In fact, objections were made to nearly every question asked of the witness, and exceptions duly taken to every ruling of the court admitting the answers to be given. In this connection like objections were made to the testimony of several other witnesses as to the usual stopping place of the train. The objections to the map and to Mr. Primm's testimony will first be noticed. The specific points argued by counsel in support of their objections are that the witness was not familiar with the facts of the case, except what he heard from others, and that he had no right to locate upon the map, by hearsay evidence, an imaginary train of cars, in the position he claimed it was at the time of the accident, and then verify such location of the train by further hearsay evidence. The map was shown to be substantially correct by the testimony of several other witnesses who were familiar with the facts. There is no pretense that it did not correctly represent the places thereon delineated. A bare statement of the facts, in the light of the previous decisions of this court upon like questions, carries with it the conviction that the court did not err in any of its rulings relative to the admission of the map, and the testimony of Mr. Primm in regard thereto. Construction Co. v. Danner, 38 C.C.A. 528, 97 F. 882; Railroad Co. v. Roller (C.C.A.) 100 F. 738. With reference to the testimony as to the place where the train usually stopped, this of itself might be, in a measure, immaterial. The important question was, where did the train stop on the morning of the accident? All of the positive testimony on this point tends to show that it stopped at the usual place, it was material and important, because it would have a tendency to show how near to the place where the passengers got off, the hydrant or hole was located. There was positive testimony upon both of these points. Some of the witnesses were runners for the different hotels, who had for years been familiar with the place where the train usually stopped, and they testified that the hydrant or water box was so near the place where the passengers got off that they were often in the habit of standing on the cover when the ground was wet, and that it was within a few feet of that point. One of these witnesses testified: That he had seen the trains 'stop right over the hole,--the steps of the smoking car and the day coach,-- and sometimes it would be three or four feet past it, north of it * * * and south of it. ' That sometimes the train stopped so that the passengers would have to step on the lid of that box when they got off from the steps of the car, before they could get onto the ground, and some trains would stop so that they would not have to step on it. 'Q. On this particular morning, was that hole covered or uncovered? A. It was uncovered. Q. Did you see Mr. Hall on that morning? A. I saw him after he was hurt. After I stepped into this hole, and got out of it, the first man I saw was Mr. Hall lying there in front of me, a few feet north of the box, and his foot was crushed and bleeding, and he asked me to get him something to stop the pain. ' There was a conflict in the evidence as to whether...